Capital punishment : the legal and philosophical considerations

Abstract

Public support for the death penalty has risen and fallen over the years, but the controversy remains intense. What has kept the death penalty alive is a complex discussion. Scholars have questioned the morality and efficacy of its application for as long as it has been in use. Today, many countries regard the death penalty as a barbaric, inhumane, and downright cruel form of punishment to be practiced in the twenty-first century. The reasons behind why nations abolish the death sentence range from political to legal to moral. Ultimately, the foundations for opposing or justifying capital punishment stem from the philosophical theories seeking to establish punishment. Whilst the death penalty, may have found its justifications from a philosophical standpoint under the theories of punishment namely retribution and/or utilitarian, it is hardly possible for it to find the same justifications on a human rights basis. There is very little room for one to attempt to make an argument to justify this punishment considering the numerous International and European instruments which safeguard human rights. Although the death penalty is not expressly prohibited by the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights or The European Convention on Human Rights, there are several agreements in existence which are endorsed by fewer state parties, that strictly limit it, such as the Second Optional Protocol to the ICCPR. Similarly, International customary law does not yet prohibit the death penalty. It is hoped that by time, most means of carrying out the death sentence will be viewed as a violation of the protection against cruel, inhuman, or degrading treatment and eventually, the penalty itself would be regarded as a violation of the right to life.